CARMINE DIGIORGIO v. BOARD OF EDUCATION OF THE CITY OF ELIZABETH
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4616-07T2
CARMINE DIGIORGIO,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF THE CITY OF
ELIZABETH, THOMAS G. DUNN, JR.,
PABLO MUNOZ, and AIDA GARCIA,
Defendants-Respondents.
____________________________________
Argued December 15, 2009 - Decided April 30, 2010
Before Judges Grall, Messano and LeWinn.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-2410-05.
the cause for
Richard A. Dunne argued
appellant.
Robert A. Ungvary argued the cause for
respondents.
PER CURIAM
Plaintiff appeals from the April 18, 2008, order of the Law
Division, entering judgment for defendants following a jury
trial on his complaint alleging violations of the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We
affirm.
The pertinent trial evidence may be summarized as follows.
The Board of Education of the City of Elizabeth (Board) hired
plaintiff as a school security guard in 1998. In 2002,
plaintiff was diagnosed with colon cancer and underwent medical
treatment including the implantation of a medical port in his
chest; subsequently plaintiff underwent additional surgery
including an ileostomy which required him to wear adult diapers.
The Board suspended plaintiff but rescinded that suspension
after plaintiff filed a grievance through his union.
In March 2003, plaintiff's acquaintance, Gerry Sanzone, a
security guard employed by the Board, informed plaintiff that a
similar position was available at the Board's administration
building. Plaintiff applied for that position and was hired
effective May 5, 2003. Plaintiff's employment responsibilities
included signing in visitors, monitoring metal detectors,
securing the premises, and stamping the outgoing mail. His post
was located in the building's lobby.
Soon after plaintiff began this employment, Sanzone noticed
that he would make "[q]uite a few" racist and sexist remarks
about other employees. Board employee, Margaret Alago,
identified as a staffing assistant in the Board's Human
A-4616-07T2
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Resources Department, also overheard plaintiff make a sexist
remark, which offended her to the point that she came out of her
office and called plaintiff "a disgusting pig." At about this
time, it was discovered that plaintiff was also reading outgoing
mail and opening packages, which he was not authorized to do.
Alago reported plaintiff's conduct to Charlie Smith, the
Board's Affirmative Action/EEOC Officer. At Smith's request,
both Alago and Sanzone submitted written complaints. Alago
stated that plaintiff continued to make sexist comments about
female employees. She testified that she was unaware of
plaintiff's medical condition at this time. Sanzone stated
that, in addition to "us[ing] foul language and mak[ing] sexual
comments[,]" plaintiff also "open[ed] mail and look[ed] into
packages [and] bags of other people."
In the course of his investigation, Smith also received a
written complaint from Joyce Ortel, the Board's Office Manager,
stating that plaintiff "made a sexual reference to her, which
she was embarrassed and hurt by . . . ."
Smith interviewed plaintiff, Sanzone, Alago and Ortel
separately. Upon concluding his investigation, Smith found that
the allegations against plaintiff were credible and recommended
that he be disciplined, suspended, or discharged. On September
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18, 2003, the Board voted to terminate plaintiff's employment
effective October 2, 2003.
On July 5, 2005, plaintiff filed his complaint alleging LAD
violations, specifically claiming that he was terminated because
of his medical condition. At trial, he asserted that because of
his surgery, the resulting incontinence and his occasional
unpleasant odor, his co-workers conspired to fabricate
complaints against him, ultimately resulting in his termination.
Contrary to Alago's testimony that she knew nothing of
plaintiff's medical condition at the time, plaintiff testified
that he told both Alago and Sanzone about his medical condition
and his use of diapers, and that both of them made comments
about his "odor[.]"
At the conclusion of an eight-day trial, the jury returned
a unanimous verdict finding that plaintiff had failed to prove
by a preponderance of the evidence that he had been subjected to
discrimination because of his "status as a cancer patient[.]"
On appeal, plaintiff raises the following contentions for
our consideration:
POINT I:
IT IS PERFECTLY APPROPRIATE TO APPLY THE
THEORY OF 'SUBORDINATE BIAS', OR WHAT IS
ALSO REFERRED TO AS THE 'CAT'S PAW
DOCTRINE', TO THE FACTS OF THIS CASE TO
IMPUTE MARGARET ALAGO'S ACTIONS TO THE
DEFENDANT, BOARD, FOR THE PURPOSE OF HOLDING
A-4616-07T2
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THE BOARD VICARIOUSLY LIABLE FOR HER ACTIONS
ESPECIALLY IN LIGHT OF HER TRIAL TESTIMONY
CONCEDING SHE HAD NO BASIS WHATSOEVER TO
LODGE SOME OF THE COMPLAINTS SHE MADE WHICH
WERE DIRECTLY RESPONSIBLE FOR THE BOARD'S
DECISION TO DISCHARGE THE PLAINTIFF.
POINT II:
AS A STAFFING ASSISTANT FOR THE DEFENDANT'S
DEPARTMENT OF HUMAN RESOURCES, MARGARET
ALAGO WAS NOT ONLY FORMALLY RECOGNIZED AS AN
ADMINISTRATOR BY THE DEFENDANT, BOARD OF
EDUCATION, BUT POSSESSED SUFFICIENT
ADMINISTRATIVE POWERS AND RESPONSIBILITIES
TO WARRANT EQUATING AND IMPUTING HER ACTIONS
WITH THOSE OF THE BOARD OF EDUCATION FOR THE
CITY OF ELIZABETH.
POINT III:
WHEN MEMBERS OF A JURY INDICATE, AS THEY DID
HERE, THAT DIFFERENT PORTIONS OF THE LEGAL
INSTRUCTIONS THEY WERE GIVEN HAD, AT LEAST
IN THEIR MINDS, CREATED "INCONSISTENCIES", A
NEW TRIAL IS WARRANTED BECAUSE THEIR OBVIOUS
CONFUSION MAKES IT HIGHLY UNLIKELY THE
VERDICT THEY ULTIMATELY ACHIEVED, AFTER
NAVIGATING THROUGH THOSE "INCONSISTENCIES",
WOULD HAVE BEEN THE SAME HAD THE
INSTRUCTIONS BEEN GIVEN CORRECTLY.
Having considered these contentions in light of the record and
the applicable legal principles, we find no reversible error.
Plaintiff's first two contentions focus upon the status and
conduct of Margaret Alago. Plaintiff posits that either (a)
Alago was a "subordinate" whose conduct should be imputed to the
Board pursuant to the so-called "cat's paw" doctrine, to hold
the Board vicariously liable; or (b) Alago "possessed sufficient
A-4616-07T2
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administrative powers and responsibilities" in her own right,
thereby directly imposing liability upon the Board. We disagree
with both scenarios.
The theory of "subordinate bias," or the "cat's paw"
doctrine, has not been recognized in any reported decision in
this State. It has, however, gained recognition in federal
employment cases, in which it has been defined as "refer[ring]
to a situation in which a biased subordinate, who lacks
decisionmaking power, uses the formal decisionmaker as a dupe in
a deliberate scheme to trigger a discriminatory employment
action." EEOC v. BCI Coca-Cola Bottling Co.,
450 F.3d 476, 484
(10th Cir. 2006), cert. dismissed,
549 U.S. 1334,
127 S. Ct. 1931,
167 L. Ed. 2d 583 (2007). In other words, "[a] biased
low-level supervisor with no disciplinary authority might
effectuate the termination of an employee from a protected class
by . . . fabricating information in communications with the
Id. at 486.
formal decisionmaker."
To support this claim, plaintiff relies substantially upon
our unpublished opinion in Kwiatkowski v. Merrill Lynch, No. A-
2270-06 (App. Div. Aug. 13, 2008). We decline to consider that
decision for two reasons. First, Rule 1:36-3 provides that
"[n]o unpublished opinion shall constitute precedent or be
Moreover, Kwiatkowski is factually
binding upon any court."
A-4616-07T2
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distinguishable to a degree rendering it inapposite to this
case, as it involved an appeal from a grant of summary judgment
to defendants dismissing the plaintiff's LAD complaint. In that
context we recognized that the plaintiff was wrongfully deprived
of the opportunity to demonstrate that "a biased employee
level[ed] false charges of misconduct against [him]" and the
"decisionmaker" failed to "independently investigate[] the
charges." Slip op. at 27, 32.
Here, plaintiff had a full trial with every opportunity to
adduce all pertinent evidence of Alago's conduct. We are
satisfied that the record demonstrates that Alago's actions were
motivated by her direct and reported observations regarding
plaintiff's racist and sexist comments, as well as his
inappropriate conduct in reading mail and opening packages.
There was conflicting evidence respecting Alago's awareness
of plaintiff's medical condition. As noted, Alago claimed to
have no knowledge of that condition, while plaintiff testified
that he told both Alago and Sanzone about it. Resolution of
that conflicting evidence was for the factfinder. We cannot say
that the jury clearly erred in resolving that factual dispute in
favor of defendants.
Regarding plaintiff's second attempt to implicate the Board
based on Alago's status, the record does not bear out his
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contention that Alago was a decisionmaker for the purpose of
imputing her actions to the Board. Determining whether an
employee should be considered part of "upper management" is a
fact-sensitive inquiry. Cavuoti v. N.J. Transit Corp.,
161 N.J.
107, 122 (1999). Such employees are
those responsible to formulate the
organization's anti-discrimination policies,
provide compliance programs and insist on
performance . . . and those to whom
the organization has delegated the
responsibility to execute its policies in
the workplace, who set the atmosphere or
control the day-to-day operations of the
unit (such as heads of departments, regional
managers, or compliance officers).
[Id. at 128-29.]
A second tier employee may be considered "'upper management'" if
the employee either has "(l) broad supervisory powers over the
involved employees, including the power to hire, fire, promote,
and discipline, or (2) the delegated responsibility to execute
the employer's policies to ensure a safe, productive and
Id. at 129.
discrimination-free workplace."
The evidence showed that Alago was a staffing assistant at
Human Resources. Her employment responsibilities included
processing employment applications, verifying applicant
information, and scheduling interviews; her functions were
clerical in nature, not supervisory. In short, there was
insufficient evidence from which a jury could reasonably
A-4616-07T2
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conclude that Alago was a decisionmaker whose actions could be
imputed to the Board. For this reason, we are also satisfied
that the trial judge properly denied plaintiff's request to
charge the jury that Alago's actions could be imputed to the
Board.
In any event, plaintiff's proffer of the "subordinate bias"
or "cat's paw" doctrine does not aid his cause. The record does
not support a finding that Alago acted with discriminatory
intent. We find no evidence that Alago fabricated her complaint
to Smith, as plaintiff claims; similar complaints were submitted
by Sanzone and Ortel.
Finally, we address plaintiff's challenge to what he
characterizes as internal "inconsistencies" in the jury charge
on the concept of "pretext." Once an employee has made "a prima
facie showing of discrimination," by showing that he belonged to
a protected class and was terminated in spite of performing at
an acceptable level, the burden then shifts to the employer to
"produce evidence showing a legitimate, nondiscriminatory reason
for the discharge[.]" Fleming v. Corr. Healthcare Solutions,
Inc.,
164 N.J. 90, 100 (2000). The proffer of such evidence
shifts the burden back to plaintiff "'to prove by a
preponderance of the evidence that the legitimate
nondiscriminatory reason articulated by the defendant was . . .
A-4616-07T2
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merely a pretext for discrimination.'" Mogull v. CB Commercial
Real Estate Group, Inc.,
162 N.J. 449, 462 (2000) (quoting
Andersen v. Exxon,
89 N.J. 483, 493 (1982)).
Where, as here, the Board asserted non-discriminatory
reasons for terminating plaintiff, namely his racist and sexist
remarks and improper reading of mail and opening of packages,
the model jury charge required instructing the jury that it
should consider whether the explanation
given by the defendant for . . . its actions
was the real reason for its actions. If you
don't believe the reason given by the
defendant is the real reason the defendant
[terminated] the plaintiff, you may, but are
not required to find that the plaintiff has
proven his . . . case of discrimination.
[Model Jury Charge (Civil), 2.21 "The New
Jersey Law Against Discrimination" (2003).]
At one point in the charge, the judge instructed the jury
as follows:
The defendants have stated that [plaintiff]
was terminated for making inappropriate
comments and tampering with the mail. So,
your task is not to determine whether the
Board's conclusions that he made
inappropriate comments and tampered with the
mail were "right" or "fair." Your task is
to determine whether it is more likely than
not that the plaintiff's status as a cancer
patient played a role in the decision to
terminate his employment and made an actual
difference in that decision.
[Emphasis added.]
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Plaintiff points out that the highlighted language is not in the
model jury charge, and contends that it had the clear capacity
to confuse the jury.
The jury had two questions; one was about a date on an
exhibit, and the other was whether the charge and the first
question on the verdict sheet were inconsistent.1 The judge
instructed the jury to "consider the[] instructions as a whole,
and . . . not to pick out any particular instruction and place
undue emphasis upon it." The judge added: "To the extent that
you think that question might be inconsistent with the
instruction, the instruction is what you're supposed to follow
in answering the question." The judge then asked the jury if
that answer provided "sufficient guidance[,]" and invited them
to "send . . . out another question" if necessary. The jury
asked no further questions and shortly thereafter returned with
its verdict.
Plaintiff contends that the judge's misstatement caused
confusion in the minds of the jury, as evidenced by their
question. However, at several other points in the charge, the
judge told the jury that "the ultimate issue [they] must decide"
1
The first question on the jury sheet was: "[D]id [plaintiff]
prove that it is more likely than not that [defendants] engaged
in intentional discrimination by terminating his employment
because of [his] status as a cancer patient?"
A-4616-07T2
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is whether defendants "terminate[d] . . . [p]laintiff's
employment because of . . . [his] status as a cancer patient[,]"
and that plaintiff must prove "that the employer's stated
reasons for its action are not the real reason for its action."
(Emphasis added.) This language is consistent with the model
jury charge. As noted, the judge reminded the jury to consider
the instructions "as a whole . . . ." We do not regard an
instruction that the jury "not" determine whether the Board's
"conclusions" were "right" or "fair" to be inconsistent with the
instruction that they are to determine whether the Board's
proffered reasons were the real basis for terminating plaintiff.
The former serves to exclude irrelevant considerations from the
jury's deliberations, while the latter focuses on the proper
issue to be resolved.
Considering the jury charge as a whole, Toto v. Ensuar, 196
134, 144 (2008), we are satisfied that the jury was
N.J.
properly instructed as to its function, which was to determine
whether plaintiff had met his burden of proving discriminatory
treatment. Moreover, considering the evidence of record, we
cannot say with any confidence that a jury instructed in strict
conformance with the model charge would have reached a different
result. Viscik v. Fowler Equip. Co.,
173 N.J. 1, 18 (2002).
Affirmed.
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